A – Abuse of process
21/8/14
THE CO-OPERATIVE BANK PLC v PHILLIPS [2014] EWHC 2862 (Ch)
A bank with a second charge discontinued possession proceedings in circumstances where there was no equity in the mortgaged property after the first charge. The mortgagor applied for the bank to pay his costs on the indemnity basis arguing that the bank had brought the proceedings for an improper purpose. The court reviewed the principles relating to the exercise of a mortgagee’s power for proper purposes [38] and held that it was not improper or an abuse of process for the bank to take proceedings to put pressure on the mortgagor to make payments to the bank. But on the true construction of the charge, the bank was not entitled to payment by the mortgagor of costs which were unreasonably incurred. On the evidence the bank’s costs of the proceedings had been unreasonably incurred and the bank had no right to seek to set them off against liabilities of the mortgagor to the bank.
29/5/12
SPICER v TULI [2012] EWCA Civ 845; [2012] 1 WLR 3088
Dismissal of a possession claim by consent did not give rise to an issue estoppel or abuse of process preventing a second possession claim from being pursued in circumstances where there had been no judgment on the merits and the claimant had made it known to the defendant that it was not the claimant’s intention to abandon the claim.
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